United States v. Wolf
Opinion of the Court
ORDER
A federal jury found Roger Wolf guilty of eight counts of wire fraud, see 18 U.S.C. § 1343, for his role in scheming to defraud the bank financing his business. The district court sentenced him to a total of 48 months’ imprisonment. Proceeding pro se on appeal, Wolf alludes to several arguments but raises only one — that the trial evidence is insufficient to sustain his convictions. We affirm the judgment.
Wolf was president and sole owner of Illinois Vehicle Insurance Agency, a company that, with the aid of wholly owned subsidiary Illinois Vehicle Premium Fi
IVPF sought new funding in 1995 and entered into a collateralization agreement with a Texas bank now owned by JPMor-gan Chase Bank. Under that agreement and a 1997 renewal, Chase eventually committed to making up to $55 million available to IVPF. Each month IVPF provided Chase with reports detailing policies obtained for its customers and requested funds to finance the purchase of those policies. Chase would forward the funds, and in return IVPF would assign the future payments due on the financed policies to Chase. The terms of the agreement called for Chase to earn a return of between 8 and 12 percent on its investment. IVPF made money primarily by charging fees to collect and process the monthly payments from its customers.
In order to ensure the performance of the portfolio, Chase set specific guidelines for the policies it would finance. The agreement between IVPF and Chase characterized policies meeting the bank’s parameters as “eligible” and all other policies as “ineligible.” The agreement made clear that IVPF would be responsible for reimbursing Chase for any ineligible policy inadvertently purchased with Chase’s money. The agreement also required IVPF to maintain a segregated “Deposit Account” exclusively for payments received on policies financed by Chase. These payments were to be held in the Deposit Account and sent to Chase by the next business day after receipt. The agreement also required IVPF to update Chase daily on monies deposited into the Deposit Account and to send a monthly servicer’s report identifying all open accounts and all new policies originated by IVPF for the month. This latter report was the primary method by which Chase tracked the receivables securing its extension of credit to IVPF.
All was well until November 1999 when Chase conducted a routine review of IVPF’s financial statements. The bank detected a shortfall of about $9 million between the amount outstanding on Chase’s loan to IVPF and the company’s accounts receivable. Chase immediately notified IVPF that it would fund no more policies until the shortfall was explained and the amounts were reconciled. Chase also demanded an audit of the accounts receivable, as permitted under the terms of the agreement. IVPF ignored the audit request. Payments on policies previously financed by Chase continued, however, and IVPF remained obligated to forward those payments to Chase.
IVPF was still using the Deposit Account and forwarding money from that account to Chase in October 2000 when consultants hired by the bank visited IVPF’s offices and compared its bank statements with the servicer’s reports submitted to Chase. The consultants discovered that Jerome Januszewski, IVIA’s controller and chief financial officer, had wired about $6.2 million out of the Deposit Account in roughly 50 transactions from December 1999 through September 2000 (the indictment period). Chase first sought civil relief and later alerted the government. After an investigation, Januszewski was charged in May 2008 with wire fraud based on the false servicing reports faxed from Illinois to Chase in Texas during the months covered by the indictment. The indictment was later superseded to add Wolf on the theory that he directed Jan-uszewski to falsify the reports.
Wolfs defense at trial proceeded on two bases: impeaching Januszewski’s credibility and arguing that the diverted monies were never Chase’s in the first place. Wolfs lawyer questioned Januszewski about inconsistent statements he gave when deposed in the civil matter between IVPF and Chase. Counsel also established that Januszewski had transferred money out of the Deposit Account before the indictment period (which Januszewski had denied on direct examination) and exercised far more day-to-day control over IVPF’s finances than did Wolf. Januszew-ski also conceded that IVPF had long adopted the practice of depositing payments for both eligible and ineligible policies into the Deposit Account and then culling the proceeds from ineligible policies before sending the remainder to Chase. And, Januszewski admitted removing the footed pages from funding reports which would have allowed Chase to easily reconcile the often lengthy lists of policies. That way Chase could not readily tell that some of the policies it was funding were ineligible.
Wolfs trial counsel also elicited though cross-examination that the Chase consultants and the FBI case agent had not conducted a forensic analysis to confirm that the monies transferred out of the Deposit Account exceeded the amount of the ineligibles. Counsel argued that any payments from ineligible policies belonged to Wolf, not Chase, because the agreement with Chase expressly excluded ineligibles from funding. At the government’s behest, however, the jury was instructed that proof of actual loss is not required to convict.
On appeal Wolf challenges the sufficiency of the evidence. To prove wire fraud under § 1343, the government needed to show that Wolf participated in a scheme to defraud, had intent to defraud, and used the wires in furtherance of the scheme. See United States v. Radziszewski, 474 F.3d 480, 484-85 (7th Cir. 2007); United States v. Davuluri, 239 F.3d 902, 906 (7th Cir. 2001). Wolf does not dispute that the servicer’s reports were false or that they were sent by facsimile from Illinois to a Chase office in Texas. He argues instead that the funds diverted from the Deposit Account belonged to IVPF and thus the government never demonstrated intent or participation in a scheme to defraud.
A conviction will stand if any rational jury could have found the elements of the charged crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); United States v. Severson, 569 F.3d 683, 688 (7th Cir. 2009); United States v. Farris, 532 F.3d 615, 618 (7th Cir. 2008). As we have often noted, appellants challenging the sufficiency of the evidence face a “nearly insurmountable” obstacle, especially in light of the fact that we do not second-guess jurors about the credibility of witnesses or the weight of the evidence. See United States v. Oros, 578 F.3d 703, 710 (7th Cir. 2009); Radziszewski, 474 F.3d at 485; United States v. Angle, 234 F.3d 326, 339 (7th Cir. 2000). Viewed in the light most favorable to the government, the evidence is ample.
Januszewski testified that Wolf instructed him to take the money from the Deposit Account to fund new policies and IVPF’s daily operations and to conceal the transactions from Chase; he also testified that, without these transfers, IVPF would have had only a few weeks’ operating funds at the most. According to Januszewski, when Chase asked questions, Wolf repeatedly told Januszewski to “spin 'em,” which Januszewski understood to mean continue deceiving Chase to buy further time. In addition, Chase’s consultants testified that Wolf admitted the scheme when he met with them in October 2000. There is no evidence in the record that Wolf ever claimed during his dealings with Chase that the money transferred out of the Deposit Account belonged to IVPF. Rather, counsel raised the argument at Wolfs criminal trial and, given the evidence, the jury was entitled to view the contention as a post-hoc attempt to explain away Wolfs intended fraud.
Wolf also attempts to discredit Janusz-ewski by pointing out that his testimony was impeached with prior inconsistent statements. But nothing Wolf points to would have precluded the jury from believing Januszewski’s testimony that Wolf instructed him to deceive Chase. As was its prerogative, the jury chose to believe Jan-uszewski despite the inconsistencies of his testimony. In any event, Januszewski’s cross-examination further hurts Wolfs argument: Wolfs lawyer elicited testimony that Januszewski had concealed ineligible policies in various funding reports, which deceived Chase into funding ineligible policies. This testimony reinforced the conclusion that the money diverted was Chase’s and not IVPF’s because IVPF was obligated under the agreement to reimburse Chase for any inadvertently funded ineligibles.
Wolf also contends that he cannot be guilty because the government did not prove that Chase lost money during the period covered by the indictment. According to Wolf, Chase had estimated the shortfall at $9 million in November 1999 and it stood at $8.5 million at the end of
AFFIRMED.
Reference
- Full Case Name
- United States v. Roger WOLF
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- Published